1 See Schwartz, Gary T., “The Myth of the Ford Pinto Case,” Rutgers Law Review 43, no. 4 (Summer 1991): 1013–68, for a full account. See also Posner, Richard A., Tort Law: Cases and Economic Analysis (Boston: Little, Brown & Co., 1982), 225–26.
The account in the text reflects the popular mythical account of the Ford Pinto controversy, but it is misleading in critical respects. On the one hand, it ignores the question of Ford's responsibility and liability for an original negligent design in locating the fuel tank in an unusually vulnerable position. Of course, if the original design was defective, Ford should be liable for any resulting injuries, even if the post-manufacture precaution of strengthening the fuel tank was too costly. On the other hand, the dollar values were computed in 1973; Ford did not, in fact, rely on these figures in deciding against strengthening the fuel tank; the controversially low “value of life” figures were supplied by a federal government agency, not by Ford; the vehicles included all cars sold in the United States in a typical year, not just the Ford Pinto; and the study in question focused on rollover accidents, not rear-end collisions. See Schwartz, , “Myth,” 1020–28.
2 Broadly speaking, utilitarian approaches judge the morality of an act by the aggregate utility of the consequences of that act, while deontological approaches instead (or also) consider whether the act is right or wrong in itself.
3 However, the question of whether an actor's beliefs are reasonable is, in a limited way, relevant to whether the actor's conduct is reasonable. For we cannot make sense of the concept of an ex ante probability of a risk of harm without an epistemic account of risk. See Section IIB below.
4 Suppose no precaution would have avoided the accident, even if the driver had been paying proper attention.
In law, negligence is sometimes a culpability requirement of only one element of a crime, tort, or other legal norm, in which case it might have subsidiary importance. In the crime of assaulting a police officer, for example, liability might depend on the actor being at least “negligent” as to the risk that the person he is assaulting is a police officer; but the more serious culpability obviously is that entailed by the act and intention of assaulting a person.
5 As a matter of ordinary language, “negligence” might indeed presuppose inadvertence:
“Carelessness” and, consequently, “negligence” signify neither a “state of mind,” such as indifference, nor merely a “type of conduct,” such as a failure to take precautions against harm. “Carelessness” or “negligence” is a failure to give active measure-taking attention to the risks inherent in the successful prosecution of some activity.
White, Alan R., Grounds of Liability (Oxford: Clarendon Press, 1985), 102.
However, I use the term in the broader sense that White calls a “type of conduct.” The ordinary language usage is, I believe, beginning to expand toward this broader usage. In any event, the sense of negligence as unreasonably risky conduct has more general importance in morality and law.
Of course, inadvertence is not always culpable. Moreover, when inadvertence is culpable, this might be because one should have adopted a different action-guiding strategy that would have avoided risk, not simply because one “should have been aware” of the risk. See Feinberg, Joel, “Sua Culpa,” in Feinberg, , Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970), 194 (“Overly attentive drivers with the strongest scruples and the best intentions can drive as negligently as inattentive drivers and, indeed, a good deal more negligently than experienced drivers of strong and reliable habits who rely on those habits while daydreaming.…”); see also Simons, Kenneth W., “Rethinking Mental States,” Boston University Law Review 72, no. 3 (05 1992): 550–51.
6 This is an oversimplification. The law typically predefines certain categories of force as conclusively reasonable, and adds an explicit “reasonable person” criterion only for certain questions, including the actor's belief that force was being threatened or that defensive force was immediately necessary.
7 To be sure, sometimes “negligence” is used in a wider sense. One can negligently forget a spouse's birthday, or make a negligent accounting mistake that causes only economic harm. And the epistemic sense of “negligence” is very wide: with respect to any subject whatsoever, a belief can be formed negligently (i.e., without sufficient grounds), or one can be negligent in failing to form a true belief (based on the grounds available). In law, however, the most important sense of negligence is with respect to risks of physical injury, for those are the dominant uses of negligence in tort and criminal law, which in turn are the dominant legal fields in which the negligence concept is used. In morality, as well, negligent creation of physical harms has special importance.
8 However, certain descriptions of intentional harms do presuppose that the harms are unjustifiable. To “murder” another is not merely to cause his death intentionally, but also to do so without justification. I thank Larry Solum for this point.
9 In criminal law, when the probability and seriousness of the risk are sufficiently great (e.g., when one knowingly or intentionally kills), the burden of persuading the fact-finder of lack of justification sometimes shifts to the defendant, and the grounds of justification are also limited to certain narrow categories such as self-defense, defense of others, or necessity. These legal features reflect the fact that such risks are more often morally unjustifiable. But it would, in principle, be possible to have a “sliding scale” test encompassing all wrongs, and requiring stronger justification as the perceived probability of the risk approaches 100 percent.
10 A fully consequentialist account does have difficulty making sense of ex post justification, insofar as we cannot be certain, until the end of time, whether an act will turn out for the best. (I thank David Lyons for this point.) On the other hand, if we relativize the ex post judgment to the information known at the time of judgment, a qualified consequentialist assessment is possible. The idea of an ex post judgment of an act normally does presuppose such a relative judgment, occurring at some time subsequent to the act being judged.
11 In law, negligence sometimes refers to unreasonable conduct, and sometimes to unreasonable conduct that incurs legal liability (usually, but not always, in the form of ex post compensation).
12 The unjustifiable bringing about of a harm or death is often conceptualized as “wrong doing” (the badness of an act), as compared to “culpability” (the blameworthiness of an actor). The latter category concerns the offender's degree of blame for bringing about a wrong, and thus includes the actor's mental states and excuses. For some doubts about this conceptualization, see Simons, Kenneth W., “Deontology, Negligence, Tort, and Crime,” Boston University Law Review 76, nos. 1 and 2 (02/04 1996): 285–89.
13 For endorsements of moral luck, see Nagel, Thomas, “Moral Luck,” in Nagel, , Mortal Questions (Cambridge: Cambridge University Press, 1979); Williams, Bernard, “Moral Luck,” in Williams, Moral Luck: Philosophical Papers, 1973–1980 (Cambridge: Cambridge University Press, 1981); and Honoré, Tony, “Responsibility and Luck,” Law Quarterly Review 104 (10 1988): 530–53. For criticism, see Feinberg, , Doing and Deserving, 31–33; and Sverd-lik, Steven, “Crime and Moral Luck,” American Philosophical Quarterly 25, no. 1 (01 1988): 79–86.
14 See Moore, Michael S., “The Independent Moral Significance of Wrongdoing,” Journal of Contemporary Legal Issues 5 (Spring 1994): 281; and Simons, Kenneth W., “When Is Strict Criminal Liability Just?” Journal of Criminal Law and Criminology 87, no. 4 (Summer 1997): 1111–12.
15 Fischhoff, Baruch, “For Those Condemned to Study the Past: Heuristics and Biases in Hindsight,” in Kahneman, D., Slovic, P., and Tversky, A., eds., Judgment under Uncertainty: Heuristics and Biases (New York: Cambridge University Press, 1982), 341; Fischhoff, Baruch, “Debiasing,” in ibid., 427–31. For an experimental study finding hindsight bias in judgments of negligence, see LaBine, Susan J. and LaBine, Gary, “Determinations of Negligence and the Hindsight Bias,” Law and Human Behavior 20, no. 5 (1996): 501–16.
16 The risk that negligence analysis presupposes is typically risk about future harm, not about future benefit. Is this a necessary feature of the negligence concept? Is an actor negligent if the risk pertains only to the future benefit that might justify imposing the risk of harm, and not to the future harm itself? Suppose I speed my car through your rose bushes, with a high probability of causing property damage, because I believe I must bring my child to the hospital. If I am unreasonable in thinking that there is any significant health risk to my child, am I negligent in causing that damage? In a sense, I am; but the more typical sense of negligence confines the concept to low-probability risks of harm. This issue also arises with the use of defensive force, insofar as one might be justified even if there is only a modest probability that the use of such force will be socially beneficial (in preventing harm to the victim).
17 Probabilities can be either “objective” or “epistemic”. That a coin toss will come up heads half the time is an “objective” probability; that a particular medical technique, even when carefully performed, creates a 2 percent risk of death is an “epistemic” probability. Epistemic probability is the form that is relevant to negligence. For a helpful explanation, see Perry, Stephen R., “Risk, Harm, and Responsibility,” in Owen, David G., ed., Philosophical Foundations of Tort Law (New York: Oxford University Press, 1995), ch. 14.
One can also distinguish “risk” (probabilities that can be precisely measured) from “uncertainty” (all other probabilities). See Viscusi, W. Kip, Fatal Tradeoffs (New York: Oxford University Press, 1992), 153–54; Rescher, Nicholas, Risk: A Philosophical Introduction to the Theory of Risk Evaluation and Management (Washington, DC: University Press of America, 1983), ch. 8; and Gillette, Clayton P. and Krier, James E., “Risk, Courts, and Agencies,” University of Pennsylvania Law Review 138, no. 4 (04 1990): 1028 n. 1. But for purposes of understanding the general concept of negligence, this distinction is not critical.
18 In this essay, I place quotation marks around the term “knowing” when I use the term in the special sense just noted in the text. This sense is unconventional in an important respect: we do not normally say that an agent has “knowingly” created a harm when the actor should have known that the harm was highly likely to occur. Rather, we reserve the term “knowingly” for one who subjectively believes that the harm was highly likely. I sometimes use the less conventional form in order to focus on negligence as a form of unreasonable risk-creation, and to contrast it with more risky behavior. If I were instead focusing on negligence as a form of inadvertent risk-creation, then I would contrast such inadvertence with knowledge as conventionally understood (subjective awareness of a high-probability risk of harm) and with one meaning of recklessness (subjective awareness of a low-probability risk of harm).
Negligent and “knowing” actors differ in their estimates of the probability of harm. A separate question is the severity or extent of the relevant harm. A ceteris paribus condition is implicit in my comparison of negligent and “knowing” actors. Negligently creating a risk of a nuclear disaster is obviously more culpable than “knowingly” stepping on someone's foot.
19 Of course, if she intends to cause the pedestrian fear, then she indeed intends a “harm,” insofar as fear is an actual (though intangible) harm. Still, one who intends a more serious form of harm (such as physical harm) is more culpable.
It is much easier to justify intentionally creating a risk of a given type of harm than to justify intentionally causing that harm. As an instance of the former, consider the promoter of a trapeze act who chooses not to use a safety net, in order to make the act more exciting.
20 On a deontological account, whether an actor intends to create a risk, as opposed to creating it as a knowing side-effect, is indeed relevant to whether, all things considered, the actor's risk-creation is justified, as I will argue below.
There is much more to say about the relevance of intention and of other conative states such as “culpable indifference” to risk or to harm. For a thorough account of the moral and legal differences between cognitive and conative mental states, see Simons, “Rethinking Mental States.”
21 Ronald Milo adopts a wider version that he calls “moral negligence” to encompass “any kind of morally wrong act due to a particular kind of shortcoming on the part of the agent — namely, a culpable failure to take those precautions necessary to assure oneself, before acting, that what one proposes to do is not in violation of one's moral principles.” Milo, Ronald D., Immorality (Princeton: Princeton University Press, 1984), 84. This is an epistemic duty, to ascertain whether one's act would violate moral principles; Milo points out that an additional question is whether (and in what way) we are culpable for nevertheless taking the risk of violating our principles. See ibid., 85.
22 See Foot, Philippa, “The Problem of Abortion and the Doctrine of the Double Effect,” in Foot, , Virtues and Vices (Berkeley: University of California Press, 1978), 23–24; and Thomson, Judith Jarvis, “The Trolley Problem,” in Thomson, The Realm of Rights (Cambridge: Harvard University Press, 1990), ch. 7. The trolley problem is often posed in contrast with the following “transplant” problem: a surgeon is considering whether to carve up an unwilling patient and transplant his organs as the only means available to save five other lives. See Thomson, , Realm of Rights, 137. Some explain the impermissibility of the trade-off in the transplant case, and its permissibility in the trolley case, by reference to the doctrine of double effect (insofar as the deaths of the workmen supposedly are foreseen but not in tended, while the death of the patient supposedly is intended). But I agree with Thomson and others that this explanation does not suffice.
23 Or, to return to the Ford Pinto example, the risk that any individual Ford Pinto vehicle would catch fire and cause a burn death (that reasonable precaution would have avoided) was .0000144, over a fleet of 12.5 million vehicles; but the expected number of burn deaths over the entire fleet of Ford Pintos was a probability greater than one — namely, 180 expected deaths. See Simons, , “Rethinking Mental States,” 292 n. 69.
To be sure, a more careful identification of the relevant frame of reference for assessing probabilities might eliminate this arbitrariness. (Compare the question of whether an individual owner must take a precaution, with the question of whether Ford must do so for all cars with the problem.) Under this approach, however, it becomes difficult to identify risks, acontextually, as “low” rather than “high” probability, i.e., as negligent rather than “knowing.”
In the end, a completely acontextual identification of risks as “low” rather than “high” seems impossible. The distinction between negligence and “knowledge” appears to be a relative judgment. Consider a question that has troubled legal scholars: whether a manufacturer of a product who knows that a small number of users (out of a much larger class) are virtually certain to surfer physical harm should be treated as “knowingly” inflicting that harm. If the issue is whether his conduct demands as strong a justification as a manufacturer who knows that every user will suffer the same degree of physical harm, the answer is clearly no. And if the issue is whether the conduct of either manufacturer would demand as strong a justification if the risks of harm were substantially lower, again the answer is clearly no. But there might be no nonarbitrary way to characterize any of these four cases as “negligent” or “knowing” in an absolute sense.
24 Thus, one might know to a certainty that one will suffer a harm either in the immediate or in the distant future; the distant harm might cause a different type or degree of emotional stress than the immediate harm. To be sure, the contemporary emotional harm produced by long-latency risks that are virtually certain to result in ultimate harm will often be dispro-portionately greater than the harm produced by less certain risks. (It will often be more than five times as painful to worry about a virtually certain future death than to worry about a 20 percent risk of death.) But these emotional harm cases do not justify distinct treatment of negligence in general. Not all cases of risk generate significant emotional harm. (In many cases, the risk is unknown or underappreciated.) At most, the considerations just discussed would justify special treatment of certain emotional harm cases.
25 See Viscusi, , Fatal Tradeoffs, 150.
26 See Gillette, and Krier, , “Risk, Courts, and Agencies,” 1091–93; and Pildes, Richard H. and Sunstein, Cass R., “Reinventing the Regulatory State,” University of Chicago Law Review 62, no. 1 (Winter 1995): 55–64.
27 In the end, however, I will reject this argument.
28 To some extent, the law recognizes this distinction, for it sometimes shifts the burden of persuasion, and narrows the grounds of justification, when the conduct moves from negligent to knowing or intentional. See note 9 supra.
I have suggested that a constraint of special stringency applies when a person knowingly or intentionally creates a high risk of death. Whether an unusually stringent constraint also applies to a person who knowingly or intentionally creates a high risk of a lesser harm than death is less certain, but I cannot explore the matter here.
29 See Hurd, Heidi M., “The Deontology of Negligence,” Boston University Law Review 76 nos. 1 and 2 (02/04 1996): 249–72.
30 Posner, Richard A., Economic Analysis of Law, 5th ed. (New York: Aspen Law and Business, 1998), 179–83.
31 Actually, this test (known as the “BPL” test) contemplates that the rational actor would aggregate the different risks that would be prevented by a precaution, e.g., risks of minor physical injury (discounted by their probability), of major physical injury (also discounted), of death, of major property damage, of minor property damage, and so forth.
32 The landmark case is United States v. Carroll Towing Co., 159 F.2d 169,173 (2d Cir. 1947). Whether Judge Learned Hand actually intended his “BPL” test to be the sort of cost-benefit economic test that Posner defends is a controversial question.
In his early writing, Richard Epstein analyzes the contrast differently, concluding that extrapolation from the intrapersonal to the interpersonal case justifies a general rule of strict liability. However, his focus is not on which decision among risky alternatives is best, but rather on who should bear the costs of the decision. In the intrapersonal case, he points out, all the costs and benefits accrue to the actor. In the interpersonal case, however, the actor might derive the benefits while the victim might bear the costs. Epstein suggests that the actor has no right to dump the costs of his action on another. Epstein, Richard A., “A Theory of Strict Liability,” Journal of Legal Studies 2, no. 1 (01 1973): 159. For a critique of this argument, see Weinrib, Ernest J., The Idea of Private Law (Cambridge: Harvard University Press, 1995), 171–75.
33 See, generally, Anderson, Elizabeth, Value in Ethics and Economics (Cambridge: Harvard University Press, 1993), 66–73.
34 See ibid., 70, discussing Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986), 349.
35 See Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971), 27–29; see also Williams, Bernard, in Smart, J. J. C. and Williams, Bernard, Utilitarianism: for and Against (Cambridge: Cambridge University Press, 1973), 116–17; and Raz, , Morality of freedom, 271–87.
36 At the same time, simple extrapolation will fail to capture the collective benefits that can be achieved only through social interaction. When and only when the hermit rejoins society, the collective benefits of friendship and community are possible.
37 In his attempt to explain American tort law, Stephen Gilles employs the extrapolation approach (which he terms the “single-owner” heuristic) in an especially interesting way. He asks what value the average injurer would assign to precaution costs. But, recognizing that the average injurer might assign too low a value to the expected accident costs to others, Gilles also asks what value the average victim would assign to those costs. “Because the average injurer and the average victim, taken together, constitute the average person, the inquiry reduces to whether the average person would take the precaution if he or she bore both the costs and benefits in full.” Gilles, Stephen G., “The Invisible Hand Formula,” Virginia Law Review 80, no. 5 (08 1994): 1035.
In American tort law, however, the negligence test employs a “reasonable” or “ideal” valuation, not an “average” valuation. Gilles tries to handle this objection by referring to the accident valuation of victims, not of injurers. Still, it seems that he should refer to the “reasonable” precaution valuation of injurers. For the average injurer might place undue weight on the cost of certain precautions (e.g., the average Boston driver is probably unduly worried about his pride when he refuses to allow other drivers to share the road).
Gilles ultimately settles on an “altruistic reasonable person standard,” asking what care an “average reasonable person takes of his or her own person and property” (ibid., 1037, 1038). The problem remains, however, that “average” and “reasonable” (or ideal) standards can deviate.
If one moves from an “average” to a “reasonable” valuation, one has moved from a factual, descriptive account of utilities to a normative, social valuation. (See the discussion below of a modified utilitarian calculus.)
38 See Thomson, , Realm of Rights, 197–99. It might be permissible to take blood from unconscious X in order to save Y.
39 Gillette, and Krier, , “Risk, Courts, and Agencies,” 1071–79.
40 Ibid., 1028 n. 2. They do, however, acknowledge a possible role for distributive principles.
41 See, e.g., Parfit, Derek, “Equality or Priority?” The Lindley Lecture (University of Kansas, 11 21, 1991); and Brink, David O., Moral Realism and the Foundations of Ethics (New York: Cambridge University Press, 1989), 270–73 (where Brink argues that an objective form of utilitarianism can endorse a distribution-sensitive theory of value).
Concern about distributive effects is a powerful reason not to adopt Richard Posner's suggested wealth-maximization version of utilitarianism. This version evaluates choices by the criteria of willingness and ability to pay, rather than utility. But these criteria create an additional problem of distributive justice, beyond that entailed by utilitarianism. For example, under the wealth-maximization approach, it is better to endanger the safety of a poor person than the safety of a wealthy person: “a person should feel free to drive faster in a poor than in a wealthy neighborhood because expected accident costs are on average lower in the former,” as Posner candidly concedes. Posner, Richard A., “Wealth Maximization and Tort Law: A Philosophical Inquiry,” in Owen, , ed., Philosophical Foundations, 110.
42 Criminal law does not redistribute costs. Therefore, if strict criminal liability is justifiable, the justification must be different. See Coleman, Jules, Risks and Wrongs (New York: Cambridge University Press, 1992), 222–23; and Simons, , “When Is Strict Criminal Liability Just?”
43 However, it is also proper to consider not only the actor's primary conduct, but also his ability to insure against the risks of his conduct. The permissibility of engaging in some activity might itself depend on ability to absorb certain risks of one's conduct. We forbid people from driving without insurance, in part because we want them to be financially responsible even for the non-negligent accidents they cause. See Simons, Kenneth W., “Jules Coleman and Corrective Justice in Tort Law: A Critique and Reformulation,” Harvard Journal of Law and Public Policy 15, no. 3 (Summer 1992): 880. See also Thomson, , Realm of Rights, 159.
44 What counts as a fair distribution is beyond the scope of this essay. In environmental law, government regulators have increasingly attended to the distribution of risk as well as its aggregate level. See Pildes, and Sunstein, , “Reinventing the Regulatory State,” 44.
The special concern that many feel about “catastrophic” loss is partly based on a distributive concern:
Imagine … a decision maker who is forced to choose between two actions. The first action poses a 1 in 1,000 chance of causing 100,000 deaths spread randomly across the country; the second has a 1 in 1,200 chance of causing the near obliteration of a city of 100,000. A rational decision maker could obviously select the first alternative, not-withstanding its larger expected loss.
Gillette, and Krier, , “Risk, Courts, and Agencies,” 1078.
45 See Thomson, , Realm of Rights, 166–68; and Raz, , Morality of Freedom, 276. For example, the conclusion that it is wrong to humiliate another for fun is unaffected by the number of persons who would derive pleasure from such an act. Anderson, , Value in Ethics and Economics, 69.
46 Dworkin, Ronald, Law's Empire (Cambridge: Harvard University Press, 1986), 307.
47 See Goodin, Robert E., Utilitarianism as a Public Philosophy (Cambridge: Cambridge University Press, 1995), ch. 9 (“Laundering Preferences”).
48 See Brink, , Moral Realism.
49 In Goodin's terminology, the prohibition on racially motivated actions might reflect a violation of rights and thus might be better understood as an “output filter,” not the “input filter” accomplished by laundering preferences. Goodin, , Utilitarianism, 133–37.
50 Strictly speaking, the orientation is “non-prospective” rather than retrospective. Our judgment that a negligent act deserves retributive blame could be contemporaneous with (or even prior to) the act. What I want to distinguish (as “prospective”) is a judgment that depends on whether the further consequences of the act are optimal.
51 Indeed, the exante and action-guiding features of the negligence perspective mean that negligence is necessarily a consequentialist doctrine. But this is so only in the very limited sense that the harmful consequences immediately risked by the negligent act are critical to the actor's culpability. In precisely the same sense, the wrongfulness of attempted murder, too, depends on the expected or intended consequences of the attempted murderer's acts. Only in this limited sense is our reason for blaming negligent actors or attempted murderers necessarily “consequentialist.”
52 We might also ask producers of dangerous products to contribute to a social insurance fund for the victims.
On the general idea that tragic choices require a morally sensitive actor to show regret, see Nussbaum, Martha, The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy (Cambridge: Cambridge University Press, 1986). See, generally, Waldron, Jeremy, “Rights in Conflict,” in Waldron, , Liberal Rights (Cambridge: Cambridge University Press, 1993), 214–15.
53 See, generally, Sunstein, Cass, “Incommensurability and Valuation in Law,” Michigan Law Review 92, no. 4 (02 1994): 779–861.
54 For an application of this approach to social regulation of risk, see Pildes, and Sunstein, , “Reinventing the Regulatory State,” 64–66, 127 (where they endorse the “disaggregation” of costs and benefits so that citizens and decision makers make value choices more openly).
55 In American tort law, the Restatement (Second) of Torts catalogues relevant social interests to be balanced. And the commentary to the Restatement does not emphasize the incentive effects of the balancing test that the Restatement endorses, as one would expect if the test were thoroughly consequentialist. See Restatement (Second) of Torts, sections 291–93 (1965).
56 See Rawls, , A Theory of Justice, 34–40 (where Rawls criticizes such intuitionism, and also distinguishes it from metaethical and epistemological intuitionism).
57 See Thomson, , Realm of Rights, chs. 6 (on trade-offs) and 7 (on the trolley problem). Moreover, even within the narrower frame of the alternative actions available, the agent's permission to divert the trolley onto an innocent victim does not imply a permission to throw an innocent passenger onto the tracks to stop the trolley (as Thomson observes). Thus, even the immediate consequences (in terms of net lives saved) are not dispositive of per missibility.
58 For one endorsement of such a threshold test, see Weinrib, , The Idea of Private Law, 148–50. For a response, see Simons, Kenneth W., “Justification in Private Law” (book review of Weinrib), Cornell Law Review 81, no. 3 (03 1996): 711–12. Some proponents of threshold tests mean to endorse strict liability rather than negligence; my disagreement does not extend to them.
59 But see Hurd, , “Deontology of Negligence.” For a critique, see Simons, , “Deontology” (supra note 12), 290–95.
60 Accordingly, many tort commentators view the “BPL” test and even the vaguer balancing test of the Restatement (Second) of Torts as necessarily utilitarian. See Wright, Richard, “The Standards of Care in Negligence Law,” in Owen, , ed., Philosophical Foundations, 250 (listing sources).
61 Some have asserted that British courts employ the disproportion test, rather than a supposed simple cost-benefit American test, to gauge negligence in tort law. See Gilles, , “Invisible Hand Formula,” 1026 n. 8; and Keating, Gregory C., “Reasonableness and Rationality in Negligence Theory,” Stanford Law Review 48, no. 2 (01 1996): 352–53. It is possible, however, that the British test merely shifts the burden of persuasion, and therefore does not create the problems noted in the text. See Gilles, , “Invisible Hand Formula.”
Ernest Weinrib appears to endorse some combination of the disproportion test and the “threshold of risk” test. See Simons, , “Justification in Private Law,” 702–4.
62 See Keating, , “Reasonableness,” 354: “The magnitude of the harm that death, serious physical injury, and property damage threaten to persons' capacity to pursue their conceptions of the good is usually much greater than the magnitude of the harm threatened by increased precaution costs.”
65 Incommensurability between values A and B occurs in the strongest sense when adding to or subtracting from value A does not affect the choice between A and B. See Raz, , Morality of Freedom, 322–26. (An example might be the question of whether Bach or Darwin was “more brilliant”; if either had been a little more or less brilliant than he in fact was, it would still be the case that neither was more brilliant than the other. Anderson, , Value in Ethics and Economics, 55–56.)
Such incommensurability is rare. For example, if the choice between patient autonomy and burdens to a doctor of disclosing a risk were strongly incommensurable in this sense, then no increase or decrease in the burden to the doctor, or in the value of autonomy, would affect the choice. But that seems highly doubtful. In cases of risky activity, I believe, the competing values are, at most, incommensurable in this strong sense only within a limited range or “margin.” See Raz, , Morality of Freedom, 327–28.
66 The British adopt a form of the first rule; most American jurisdictions adopt a form of the second; and some American jurisdictions permit the patient to waive disclosure, thus recognizing a version of the third.
67 For another example of a “relative valuation” approach, see Thomson, , Realm of Rights, 197–99, where she argues that, to save A's life, a guardian can authorize a fairly serious nonfatal operation on A (such as cutting off A's leg), while a guardian of both X and Y cannot balance so close to the margin in authorizing an operation on X in order to save Y's life. More generally, insofar as extrapolating from an intrapersonal to an interpersonal case is feasible and defensible, we should at least apply a significant “premium” and should require a much greater total benefit in the interpersonal case than in the intrapersonal, in order to justify nonconsensual imposition of risks on others who do not receive any direct benefit from imposing those risks.
68 See Keating, , “Reasonableness,” 319–27 (where he discusses balancing the injurer's freedom of action against the victim's interest in physical security); and Weinrib, , The Idea of Private Law, 84–113 (where he discusses deriving tort principles from a paradigm of “doing and suffering”). ProfessorWright, Richard, in “Rights, Justice, and Tort Law,” and “The Standards of Care in Negligence Law,” in Owen, , ed., Philosophical Foundations, describes corrective justice in tort law as expressing the Kantian notion that adversely affecting an other's person or stock of resources is objectively inconsistent with the other's equal negative freedom. I agree with many of Wright's conclusions, including the inadequacy of the utilitarian account and its failure to explain the relevance of the actor's motive, the victim's consent, and other important factors. However, I am not persuaded that Wright's own reductionist framework can explain all the features of tort doctrine that he purports to explain. Rather, I believe that those features are more readily justified by a pluralistic analysis.
69 See Keating, , “Reasonableness”; Weinrib, , The Idea of Private Law, and Wright, , “Rights, Justice, and Tort Law.”
70 See Anderson, , Value in Ethics and Economics, 158–63.
71 Whether explicit consent is a morally necessary precondition of imposing risk on others depends, in part, on the gravity of the risk. Below a certain threshold of risk, perhaps, no explicit consent is required. But the requirement of obtaining consent turns on the kind, as well as the level, of risk. Direct physical invasions of bodily integrity, such as through medical treatment, are far more likely to require explicit consent than are other risky acts with no greater, or even a lesser, risk of causing physical harm.
72 See Keating, , “Reasonableness,” 344. However, I find problematic Keating's explicit reliance on a Rawlsian social-justice framework to justify private tort doctrine.
73 The actor's purpose or intention to bring about a harm has enormous significance. Even if such a purposeful actor reasonably believes that he is unlikely to succeed (and thus would otherwise be considered no more than negligent), he will usually be considered more culpable than an actor who believes he is likely to bring about the harm but does not intend it. See Simons, , “Rethinking Mental States,” 478–82.
74 Nozick, Robert, Anarchy, State, and Utopia (New York: Basic Books, 1974), 28. See also Raz, , Morality of Freedom, 278.
75 See, e.g., Nagel, Thomas, “Personal Rights and Public Space,” Philosophy and Public Affairs 24, no. 2 (Spring 1995): 89–90 (where Nagel relates this prohibition to the idea of an agent's “inviolability”). See also Kamm, F. M., “Non-consequentialism, the Person as an End-in-Itself, and the Significance of Status,” Philosophy and Public Affairs 21, no. 4 (Fall 1992): 381–89.
76 Anderson, , Value in Ethics and Economics, 73.
77 We might permit this even where Q rather than P is exposed to Y amount of harm, if P and Q are sufficiently similar in their vulnerability to an original threat of harm, as in a variation of the trolley problem.
78 See Rawls, , A Theory of Justice, 42–45. Rawls describes a “lexical” ordering as one which “requires us to satisfy the first principle in the ordering before we can move on to the second, the second before we can consider the third, and so on.”
79 See Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1978), xi (where Dworkin argues that individual rights are political “trumps” held by individuals over collective goals [including utilitarianism]).
80 See Nozick, , Anarchy, State, and Utopia, ch. 3.
81 See Thomson, , Realm of Rights, chs. 6, 7.
82 See Ross, W. D., The Right and the Good (Oxford: Clarendon Press, 1930).
83 Posner, , Tort Law, 8.
84 For a similar analysis in the context of tort doctrine, see Schwartz, Gary, “Mixed Theories of Tort Law: Affirming Both Deterrence and Corrective Justice,” Texas Law Review 75, no. 7 (06 1977): 1828–33.
85 On a deontological view, this value need not be equal to the amount provided as compensation after the fact.
86 See Pildes, and Sunstein, , “Reinventing the Regulatory State,” 43–86.
87 For an illuminating discussion of this feature of deontological reasoning, see Katz, Leo, Ill-Gotten Gains (Chicago: University of Chicago Press, 1997).
88 Despite much academic support for automobile no-fault insurance as a replacement for tort negligence liability, and despite evidence that no-fault schemes save considerably on the enforcement costs of negligence liability, many people are offended by the idea that someone can negligently damage their car or their body without paying directly for that harm. (Of course, the opposition of trial lawyers is also an important part of this story.)
89 This division of labor also allows the formal legal standard to remain constant through time, while flexible in its application. (I thank Hugh Baxter for this point.)
Whether a virtue-theory approach can give content to a “reasonable person” standard is an interesting question, but one that I do not have the space to explore here. On virtue theory generally, see Statman, Daniel, ed., Virtue Ethics (Washington, DC: Georgetown University Press, 1997).
90 Insofar as a “reasonable person” test is meant to establish a standard that people can fairly be blamed for not satisfying, the test should be at least partially subjective — i.e., it should assess the individual capacities of the agent. See Perry, , “Risk, Harm, and Responsibility,” 344. Legal standards are sometimes more “objective” than this, both for practical reasons (avoiding problems of proof and of fraud) and also, perhaps, in order to express a (strict liability) principle of fairness (e.g., the principle that others in the community are entitled to a relatively high standard of conduct, even if this requires blaming or holding liable some who cannot reasonably be expected to meet the standard). Thus, courts typically ignore intellectual deficiencies, and also religious convictions that prompt actors to impose higher than usual risks on others (or on themselves).
91 The difficulty that John Rawls has encountered in convincing skeptics of the value of his own attempted solution underscores the seriousness of this problem. See Rawls, John, Political Liberalism (New York: Columbia University Press, 1996); and Rawls, , “The Idea of Public Reason Revisited,” University of Chicago Law Review 64, no. 3 (Summer 1997): 765–807.
92 See Gilles, , “Invisible Hand Formula,” 1017.
93 See Wells, Michael, “Scientific Policymaking and the Torts Revolution,” Georgia Law Review 26, no. 3 (Spring 1992): 731; and Wells, Catherine Pierce, “Tort Law as Corrective Justice: A Pragmatic Justification for Jury Adjudication,” Michigan Law Review 88, no. 8 (August 1990): 2348–2413.
94 Sometimes, jury instructions explaining negligence reflect a duty of impartiality, of considering interests of others as you would consider your own. See Restatement (Second) of Torts, section 283 cmt. e (1965); Keating, , “Reasonableness,” 337–38; and Gilles, , “Invisible Hand Formula,” 1038. For further discussion of the moral content of negligence doctrine, see Simons, , “Deontology,” 277–85.
95 The criticism that follows might not apply to much broader interpretations of corrective justice, such as Margaret Radin's understanding of corrective justice as any principles governing our response to the wrongful or unjust unsettling of entitlements. See Radin, Margaret Jane, “Compensation and Commensurability,” Duke Law Journal 43, no. 1 (10 1993): 60. On the other hand, insofar as Radin's view refers only to ex post “correction” of a wrong, it might not fully encompass the ex ante perspective of negligence.
96 These include: abnormally dangerous activities (such as the use of explosives), wild animals, product liability to some extent, and vicarious liability. (The latter imposes strict liability for the tort of another; but that other tort is usually fault-based.)
97 Liability for defective design and defective warnings is largely fault-based. Liability for manufacturing defects is strict, however.
98 Indeed, in nuisance law if a person's use of his property is unreasonable, and if certain other criteria are satisfied, injunctive relief is presumed to be the proper remedy.
The qualification “often” leaves room for a liberty constraint on state power when the moral fault of the defendant is modest. If an actor drives drunk, it is permissible for the state to prevent or enjoin his conduct. If a driver fails to follow the automobile manufacturer's maintenance schedule, enjoining him to do so would be an excessive use of state power, hi either case, however, requiring compensation for harms caused by the actor's neglect might be a legitimate use of state power. (See the discussion in the prior section.)
A corrective-justice theorist might reply that compensatory liability in such a case exemplifies strict liability rather than fault. But (as I have argued elsewhere) a genuine fault approach could justify imposing an ex ante tort “fine” to approximate the expected costs of the neglect (in either of the cases mentioned in the previous paragraph). Simons, Kenneth W., “Corrective Justice and Liability for Risk-Creation: A Comment,” U.C.L.A. Law Review 38, no. 1 (10 1990): 113–42. If this is correct, then ex post compensation can also be viewed as fault-based.
99 I do not address here “strict liability” principles of conditional fault, e.g., a requirement that a business provide insurance or some other exante assurance that it will be able to pay for harms that it might cause. See Simons, , “Jules Coleman and Corrective Justice,” 880.
100 Indeed, it would be justifiable to employ a different measure of damages in strict liability cases than in negligence cases — for example, routinely adding a “kicker” to negligence damages (beyond those damages that would leave the victim indifferent between damages and harm) to reflect the special wrong of creating unreasonable risks to others. For similar suggestions, see Keating, , “Reasonableness,” 349 n. 125, and sources cited there.